IN RE KOSTELICH/FERRARA MINORS
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of NICOLE LIBORIA KOSTELICH
and PIETRO RUSSELL FERRARA, Minors.
DEPARTMENT OF HUMAN SERVICES,
UNPUBLISHED
May 4, 2010
Petitioner-Appellee,
v
No. 295121
Wayne Circuit Court
Family Division
LC No. 03-421640
KELLY RUSSELL FERRARA,
Respondent-Appellant,
and
MELISA ANN KOSTELICH,
Respondent.
Before: MURPHY, C.J., and SAWYER and HOEKSTRA, JJ.
PER CURIAM.
Respondent Kelly Russell Ferrara appeals as of right from the trial court order
terminating his parental rights to the minor children under MCL 712A.19b(3)(c)(i), (g), and (j).
We vacate and remand for further proceedings before a different judge.
Respondent argues that the trial court plainly erred when it conducted an in camera
interview with Nicole on June 11, 2009, and that the error affected respondent’s due process
rights. The children initially came into petitioner’s care primarily on the basis of allegations of
sexual abuse committed by a paternal uncle against Nicole and on respondents’ failure to protect
her from the abuse. During the proceedings, respondent did not object to the trial court’s in
camera meeting with Nicole. Therefore, this issue was unpreserved. In re HRC, 286 Mich App
444, 450; ___ NW2d ___ (2009). Because respondent did not object to the trial court’s interview
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with Nicole, this Court’s review is limited to plain error affecting substantial rights. Id.1 Under
the plain error rule, a party must show actual prejudice, and reversal is only warranted if the error
seriously undermined the fairness, integrity, or public reputation of the trial. People v Pipes, 475
Mich 267, 274; 715 NW2d 290 (2006). Whether the trial court’s in camera interview violated
respondent’s due process rights presents a question of constitutional law that this Court reviews
de novo. In re HRC, 286 Mich App at 450.
Respondent argues that the trial court plainly erred when it conducted an in camera
interview with Nicole on June 11, 2009. At a dispositional review hearing on June 11, 2009,
petitioner requested permission to file a petition for the permanent custody of Nicole and Pietro.
During the hearing, the trial court stated, “I chatted with Nicole. She’s about ten going on
thirty.” The trial court also stated that Nicole was very smart and she had a lot of insight. The
trial court suspended respondent’s and Kostelich’s visitation. When asked why visitation was
being suspended, the trial court stated, “Child doesn’t wanna visit with the parents.” The trial
court also stated, “Child clearly feels scarred and has excellent insight and ongoing fears.” The
trial court stated that it would not continue to promote reunification and approved the filing of
the petition for termination of parental rights.
An in camera interview is an ex parte communication that occurs off the record and in the
absence of the other interested parties and their attorneys. In re HRC, 286 Mich App at 451. In
the instant case, the trial court stated “I chatted with Nicole.” At the termination hearing, Melisa
Kostelich, the children’s mother, was questioned about something that Nicole said on June 11,
2009. Kostelich’s attorney objected, stating: “Judge, I don’t believe she was in the courtroom
because that was a meeting that the Court and the young lady had in chambers, not in the
courtroom.” Accordingly, the trial court and Nicole’s “chat” constituted an in camera interview.
Id.
A recent decision of this Court guides the analysis of respondent’s argument. In In re
HRC, the trial court found that the statutory grounds for termination had been proven by clear
and convincing evidence. In re HRC, 286 Mich App at 449. However, before the trial court
made a determination regarding the children’s best interests, it held in camera interviews with
the children. After the interviews, the trial court “‘considered the testimony and also the
subsequent interviews of the children and all of the record as a whole,’” and found that
termination was in the children’s best interests. Id. at 450.
The respondents appealed, arguing that the trial court erred in conducting the in camera
interviews and basing its best interests determination on those interviews in violation of their due
process rights. After analyzing the use of in camera interviews in the context of the Child
Custody Act, MCL 722.21 et seq., and reviewing the statutory provisions of the juvenile code,
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We reject petitioner’s claim that the issue was waived as opposed to forfeited. Respondent
never expressed satisfaction with or approval of the court’s in camera interview. See People v
Carter, 462 Mich 206, 215, 219; 612 NW2d 144 (2000).
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MCL 712A.1 et seq., this Court held that “there is no authority that permits a trial court presiding
over a juvenile matter to conduct in camera interviews, on any subject whatsoever, with the
children.” In re HRC, 286 Mich App at 453.2 Accordingly, this Court found that the trial court
had plainly erred in conducting the in camera interviews of the children. Id. at 454.
Next, this Court considered whether the error affected the respondents’ substantial rights
because, as in the instant case, the trial court conducted the interviews without objection from
either party. After balancing the private interest that was affected, the risk of an erroneous
deprivation of that interest by the in camera interview, and the state’s interest or burden that
additional or substitute procedures would require, this Court held that “the use of an unrecorded
and off the record in camera interview in the context of a juvenile proceeding, for whatever
purpose, constitutes a violation of parents’ fundamental due process rights.” In re HRC, 286
Mich App at 456. This Court vacated the trial court’s best interests determination and remanded
for further proceedings in front of another judge because, without knowing the information that
the trial court gleaned from the interviews, this Court could not determine whether the trial court
would be able to set aside that information to make a new determination. Id. at 457.
Because a trial court presiding over a juvenile proceeding has no authority to conduct in
camera interviews of the children involved in the case, the trial court plainly erred in
interviewing Nicole. Given the plain error in interviewing Nicole, we must determine whether
that error affected respondent’s substantial rights. It is clear from the court’s comments,
discussed above, that the court relied on the information obtained in the in camera interview in
declining to continue promotion of reunification, in approving the filing of the termination
petition, and in suspending visitation. And it is also evident that the trial court relied on the in
camera interview when it issued its findings of fact and conclusions of law relative to the
determination of the statutory bases for termination and the children’s best interests.
Specifically, the trial court stated:
How articulate do we expect a ten year old to be about some serious
issues? She was very articulate to the Court – more articulate than a child needs
to be at age ten.
***
Sexual abuse did happen. The ongoing serious domestic violence and the
presence of the children has taken it’s [sic] toll and both things have destroyed the
bond, as so eloquently put by Nicole, and to expose a child to so much to be able
to voice what she voiced, I don’t think I’ve seen that in thirty years. Usually kids
get mad, I want to be with my parents, but to really break that bond which has
happened here, I don’t think I’ve seen it. [Emphasis added.3]
2
Accordingly, we reject the argument of the children’s counsel that In re HRC only applies to in
camera interviews relative to a best interests determination.
3
Petitioner’s argument that reversal is unjustified because the in camera interview occurred
many months before the termination trial lacks merit. The court’s remarks at the time of
(continued…)
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The trial court stated that “the two most key things [in this case] are sexual abuse and
severe domestic violence.” The court, while first noting that respondent had failed in regard to
other matters such as counseling, housing, and drug screenings, essentially gave little if any
weight to those matters in its termination ruling,4 stating:
You know, so regarding you, you can get a palace and you would never
get these children back. You would never protect them. You’re too busy being
violent to [those] you live with, the mother, and you don’t realize or recognize the
sexual abuse, so you’re rights are terminated pursuant to MCL
712A.19[b(3)(c)(i), (g), and (j)].
The trial court, concerned chiefly with the violence and sexual abuse,5 was clearly
swayed by Nicole’s in camera communications when making the decision to terminate
respondent’s parental rights under all of the statutory grounds. There was actual prejudice to
respondent, and the trial testimony does not convince us otherwise. At the termination trial, the
only witnesses were the foster care worker assigned to the case and respondent mother. The
foster care worker testified that respondent and the paternal uncle accused of committing the
sexual abuse adamantly denied that any abuse occurred. She also indicated that there was no
criminal prosecution of the uncle. The foster care worker further testified that Nicole was upset
because respondent did not believe her claims of sexual abuse. Respondent mother testified that
Nicole informed her of the sexual abuse and that she believed Nicole. This was the full extent of
the testimony regarding Nicole and the sexual abuse, and the foster care worker’s testimony
revealed strong denials of the abuse and the lack of a prosecution. Neither witness really
explored matters of domestic violence. Thus, we must conclude that the trial court placed little
reliance on the trial testimony in finding that sexual abuse and severe domestic violence occurred
and damaged the children. Instead, the court was obviously convinced to rule as it did after
hearing from the sexual abuse victim herself, Nicole, who, as suggested by the court’s
comments, was also exposed to and damaged by the domestic violence. As acknowledged by the
trial court, Nicole left quite an impression on the court.
Furthermore, the private interest at stake in this case was respondent’s fundamental
liberty interest in the care and custody of his children. In re JK, 468 Mich 202, 210; 661 NW2d
216 (2003). The risk of an erroneous deprivation was substantial because respondent had no
opportunity to learn exactly what Nicole told the trial court and, as a result, no opportunity to
counter that information. In addition, respondent had no way of knowing the full extent of how
the information influenced the trial court’s decision beyond the court’s statements on the record.
There is also no way for this Court to properly review the information because there is no record
of the interview to review. Accordingly, the trial court’s interview of Nicole “fundamentally and
seriously affected the basic fairness and integrity of the proceedings below” and the trial court’s
(…continued)
termination reveal that the earlier in camera interview still weighed heavy on the court’s mind.
4
Although the written findings of fact and conclusions of law discuss, in part, respondent’s
failure to comply with the parent-agency agreement, the written opinion does not indicate that
the failure was a basis on its own to support a ground for termination.
5
Again, it was the sexual abuse of Nicole that gave rise to this protective proceeding.
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order must be vacated. In re HRC, 286 Mich App at 457. Because we do not know exactly what
Nicole told the trial court, and because Nicole’s sentiments deeply moved the court, we cannot
conclude that the trial court would be able to set aside any information obtained in the in camera
interview when making a new determination regarding termination and best interests.
This Court vacates the order terminating respondent’s parental rights, remands for
further proceedings, and orders that the matter be assigned to a different judge on remand to
make findings regarding the termination of respondent’s parental rights. We do not retain
jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
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